Exhibit 4.5
EXHIBIT 1
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of February 15, 2001 (this
"Agreement"), by and among XxxxXxxxxxx.xxx, Incorporated, a Nevada corporation
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(the "Company"), and the undersigned (the "Investors").
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WHEREAS, pursuant to that certain First Amendment to Agreement and Plan of
Merger, dated as of February 15, 2001 (the "Amendment"), by and among the
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Company, Xxxxxxxxxxxxxxx.xxx, Incorporated, a Nevada corporation and a wholly
owned subsidiary of the Company, and the Investors, the Investors have agreed to
acquire certain shares of Common Stock, par value $.001 per share, of the
Company (the "Common Stock"), pursuant to the terms of the Amendment; and
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WHEREAS, in connection with the Amendment, the Company has agreed to
register for sale by the Investors and certain transferees, the Common Stock
received by the Investors pursuant to the terms of the Amendment; and
WHEREAS, the parties hereto desire to enter into this Agreement to evidence
the foregoing agreement of the Company and the mutual covenants of the parties
relating thereto;
NOW, THEREFORE, in consideration of the foregoing and the covenants of the
parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Certain Definitions. Capitalized terms used herein that are
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not otherwise defined shall have the meanings assigned to such terms in the
Amendment. In addition, in this Agreement the following terms shall have the
following respective meanings:
"Affiliate" means, when used with respect to a specified Person,
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another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Commission" means the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act.
"Effective Date" shall mean February 15, 2001.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"Holders" shall mean (i) the investors and (ii) each Person holding
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Registrable Stock as a result of a transfer or assignment to the Person of
Registrable Stock permitted pursuant to Section 8 of this Agreement.
"Indemnified Party" has the meaning ascribed to it in Section 5(c) of
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this Agreement.
"Indemnifying Party" has the meaning ascribed to it in Section 5(c) of
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this Agreement.
"Person" means an individual, corporation, partnership, estate, trust,
association, private foundation, joint stock company or other entity.
The terms "Register." "Registered" and "Registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Stock in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"Registrable Stock" means the Common Stock received by the Investors
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pursuant to the Amendment, except that as to any particular Registrable Stock,
once issued such securities shall cease to be Registrable Stock when (a) a
registration statement with respect to the sale of such securities becomes
effective under the Securities Act and such securities are disposed of in
accordance with such registration statement, (b) such securities are sold in
accordance with Rule 144 (or any successor provision) under the Securities Act
or (c) such Securities become transferrable with any consecutive 90-day period
in accordance with Rule 144.
"Rule 144" means Rule 144 (or any successor provision) promulgated by
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the Commission under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
Section 2. Required Registration. The Company shall prepare and file with
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the Commission, on or before the date that is thirteen (13) days after the
Effective Date, a registration statement on Form S-3 or, if not available, than
on another applicable form, which may be a post-effective amendment to an
existing registration statement of the Company, for the purpose of effecting a
Registration of the sale of all of the Registrable Stock issued by the Company
pursuant to Section 3 of the Amendment. The Company shall use its reasonable
best efforts to effect such Registration as soon as practicable (including
without limitation, the execution of an undertaking to file post-effective
amendments and appropriate qualification under applicable state securities
laws). The Company shall use its reasonable best efforts to keep such
Registrations continuously effective until the earlier of (a) the second
anniversary of the date hereof, (b) the date on which all Registrable Stock have
been sold pursuant to such registration statement or Rule 144 and (c) the date
on which all of the Registrable Stock held by such Holder may be sold in any
consecutive three month period in accordance with Rule 144;
provided, however, that the Company shall not be obligated to maintain the
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effectiveness of any Registration that is not effected under Rule 415 for a
period in excess of 90 days; provided, further, that the Company shall not be
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obligated to take any action to effect any such Registration, qualification or
compliance pursuant to this Section 2 in any particular jurisdiction in which
the Company would be required to (x) execute a general consent to service of
process in effecting such Registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction or (y) qualify as a
foreign corporation in any jurisdiction in which the Company is not then
qualified.
Notwithstanding the foregoing, the Company shall have the right (the
"Suspension Right") to suspend sales under any filed registration for a period
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of not more than 120 days during any one-year period ending on December 31, if
the Company furnishes to the Holders a certificate signed by an executive
officer or any director of the Company stating that, in the good faith judgment
of the Company, it would be unlawful for the Company or its stockholders to
continue sales under the filed registration statement and therefore the Company
has elected suspend sales under the filed registration statement.
Section 3. Registration Procedures.
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(a) The Company shall promptly notify the Holders of the
occurrence of the following events:
(i) when any registration statement relating to the
Registrable Stock or post-effective amendment thereto filed with the
Commission has become effective;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement relating to
the Registrable stock;
(iii) the suspension of an effective registration
statement by the Company in accordance with the last paragraph of
Section 2 hereof;
(iv) the Company's receipt of any notification of the
suspension of the qualification of any Registrable Stock covered by a
registration statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance
of which the Company has knowledge, that results in a registration
statement or prospectus relating to the Registrable Stock or any
document incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading during the distribution of securities.
The Company agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as
promptly as possible. The Investors agree by acquisition of the Registrable
Stock that upon receipt of any notice from the company of the occurrence of any
event of the type described in Section 3(a)(ii), (iii), (iv) or (v) to
immediately discontinue their disposition of Registrable Stock pursuant to any
registration statement relating to such securities until the Investors' receipt
of written notice from the Company that such disposition may be made.
(b) The Company shall provide to the Holders, at no cost to the
Holders, a copy of the registration statement and any amendment thereto used to
effect the Registration of the Registrable Stock, each prospectus contained in
such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Stock covered by such registration statement. The Company consents to the use of
each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Stock covered by such registration
statement or any amendment thereto. If the Common Stock is listed on a "national
securities exchange" as defined in Rule 153 under the Securities Act at any time
during the period in which the Company is obligated to keep the registration
statement effective pursuant to Section 2, the Company shall also file a
sufficient number of copies of the prospectus and any post-effective amendment
or supplement thereto with such national securities exchange (or, if the Common
Stock is no longer listed thereon, with such other securities exchange or market
on which the Common Stock is then listed) so as to enable the Holders to have
the benefits of the prospectus delivery provisions of Rule 153 under the
Securities Act.
(c) The Company agrees to use its reasonable best efforts to cause
the Registrable Stock covered by a registration statement to be registered with
or approved by such state securities authorities as may be necessary to enable
the Holders to consummate the disposition of such stock pursuant to the plan of
distribution set forth in the registration statement; provided, however, that
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the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 3 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction or qualify as a foreign corporation in any jurisdiction in
which the Company is not then qualified.
(d) Subject to the Company's Suspension Right, if any event, fact or
circumstance requiring an amendment to a registration statement relating to the
Registrable Stock or supplement to a prospectus relating to the Registrable
Stock shall exists, as promptly as practicable upon becoming aware thereof the
Company agrees to notify the Holders and prepare and furnish to the Holders a
post-effective amendment to the registration statement or supplement to the
prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Stock, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances under which such statements were made.
(e) The Company agrees to use its reasonable efforts (including the
payment of any listing fees) to obtain the listing of all Registrable Stock
covered by the registration statement on each securities exchange or automated
quotation system on which securities of the same class or series are then
listed.
(f) The Company agrees to use its reasonable efforts to comply with
the Securities Act and the Exchange Act in connection with the offer and sale of
Registrable Stock pursuant to a registration statement, and, as soon as
reasonably practicable following the end of any fiscal year during which a
registration statement effecting a Registration of the Registrable Stock shall
have been effective, to make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(g) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Stock sold pursuant to a Registration and not bearing any Securities
Act legend and to enable certificates for such Registrable Stock to be issued
for such numbers of stock and registered in such names as the Holders may
reasonably request.
Section 4. Expenses of Registration. All reasonable expenses, other than
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underwriting discounts and commissions or fees and disbursements of counsel for
any of the Holders, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3 hereof, including, without
limitation, all registration, listing and qualifications fees, printers and
accounting fees and the fees and disbursements of counsel for the Company shall
be borne by the Company.
Section 5. Indemnification.
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(a) The Company will indemnify each Holder, each Holder's officers
and directors, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
and liabilities (including reasonable legal expenses), arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement or prospectus relating to the
Registrable Stock, or any amendment or supplement thereto, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided, however, that the Company will not be liable in any such case to the
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extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its directors
and each of its officers who signs the registration statement, each underwriter,
if any, of the Company's securities covered by such registration statement, and
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (including reasonable legal fees and expenses) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any
such registration statement or prospectus, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus, in reliance upon
and in conformity with information furnished in writing to the Company by such
Holder for inclusion therein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
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indemnification (the "Indemnifying Party") promptly after such Indemnified Party
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has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 5 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to the Indemnified Party, and payment of
expenses. The Indemnified Party shall have the right to employ its own counsel
in any such case, but the legal fees and expenses of such counsel shall be at
the expense of the Indemnified Party, unless the employment of such counsel
shall have been authorized in writing by the Indemnifying Party in connection
with the defense of such action, or the Indemnifying Party shall not have
employed counsel to take charge of the defense of such action or the Indemnified
Party shall have reasonably concluded that there are defenses available to it or
them which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of the Indemnifying Party),
in any of which events such fees and expenses shall be borne by the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 5 is
unavailable to a party that would have been an Indemnified Party under this
Section 5 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Indemnifying Party or such Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Holder agree that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 5(d).
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) In no event shall any Holder be liable for any expenses,
claims, losses, damages or liabilities pursuant to this Section 5 in excess of
the net proceeds to such Holder of any Registrable Stock sold by such Holder.
Section 6. Information to be Furnished by Holders. Each Holder shall
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furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2 hereof. If any Holder fails to provide the
Company with such information within five days of receipt of the Company's
request, the Company's obligations under Section 2 hereof with respect to such
Holder or the Registrable Stock owned by such Holder shall be suspended until
such Holder provides such information.
Section 7. Rule 144 Sales.
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(a) The Company covenants that it will use its reasonable efforts
to file the reports required to be filed by the Company under the Exchange Act,
so as to enable any Holder to sell Registrable Stock pursuant to Rule 144 under
the Securities Act.
(b) In connection with any sale, transfer or other disposition by
any Holder of any Registrable Stock pursuant to Rule 144 under the Securities
Act, the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Stock sold and
not bearing any Securities Act legend and to enable certificates for such
Registrable Stock to be issued for such number of shares and registered in such
names as the selling Holder may reasonably request.
Section 8. Assignment of Registration Rights. Subject to any transfer
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restrictions otherwise applicable to the Registrable Stock, the rights of the
Holders hereunder, including the right to have the Company register Registrable
Stock pursuant to this Agreement, shall be assignable by each Holder to any
transferee of all or any portion of the Registrable Stock if: (a) the transfer
to such transferee is permitted under the Securities Act and applicable state
securities law or exemptions therefrom, (b) the Holder agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement
is furnished to the Company after such assignment, (c) the Company is furnished
with written notice of (i) the name and address of such transferee or assignee
and (ii) the securities with respect to which such registration rights are being
transferred or assigned, (d) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, (e) the transferee or
assignee agrees in writing for the benefit of the Company to be bound by all of
the provisions contained herein and (f) such transfer shall have been made in
accordance with any applicable requirements of the Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXXXXXXXXX.XXX, INCORPORATED
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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INVESTORS
________________________________
By: Xxxxxx X Xxxxxxxxxx
________________________________
By: Xxxx Xxxxxxx
________________________________
By: Xxxxxxx O'Day
________________________________
By: Xxxxxxx Xxxxx
________________________________
By: Xxx Xxxxxxx
IN WITNESS WHEREOF, the parties hereto have executes this
Agreement as of the date first above written.
XXXXXXXXXXX.XXX, INCORPORATED
By: ____________________________
Name: __________________________
INVESTORS
/s/ Xxxxxx X Xxxxxxxxxx
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By: Xxxxxx X Xxxxxxxxxx
/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx
/s/ Xxxxxxx O'Day
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By: Xxxxxxx O'Day
/s/ Xxxxxxx Xxxxx
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By: Xxxxxxx Xxxxx
/s/ Xxx Xxxxxxx
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By: Xxx Xxxxxxx
